Air law 2012


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for senior class faculty of Law English section Ain Shams University
prepared and lectured by:
Dr. Yassin El Shazly

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Air law 2012

  1. 1. COURSE HANDOUTSPRIVATE INTERNATIONAL AIR LAWFACULTY OF LAW - ENGLISH SECTION Prepared by Dr. Yassin EL SHAZLY PhD in Law, Lyon Law School, France Teacher, Business Law Department, Faculty of Law, Ain Shams University, Cairo, Egypt 1
  2. 2. Course plan 2
  3. 3. Chapter 1 : Introduction to Warsaw system 3
  4. 4. What are the main aims ?egulates liability of international air carrier for passengers’ death orinjury, as well as for loss, delay and damage to baggage and cargo Exclusive law for international air carriage: no resort to national out uniform limits of liability and conditions under which claims ofliability against the carrier are to be made.nified documents of carriage.nterests of carriers > interests of passengersPresumed liability with reversed burden of proof: no requirement toprove fault – negligence 4
  5. 5. WARSAW objectives o understand and interpret the provisions of the Warsaw Convention, it is important to keep in mind the historical background of the convention. As stated above the Convention was made when the aviation industry was still in its infancy. Today, more than 80 years after its birth, the Convention is still of major importance. owever, some of its provisions are outdated. This system provides an international treaty framework for liability rules governing commercial international aviation travel, and for documentation such as tickets and air waybills. Compensation arrangements are provided for passengers, baggage and cargo affected by aircraft accidents. 5
  6. 6. WARSAW objectives he purpose of the Convention was to create a certain degree of uniformity in the rules governing the carrier’s liability in a field where conflict of law would otherwise constitute a major problem. By creating uniformity both the carrier and the passenger are able to foresee the risk and can make arrangements to insure themselves against possible losses. he purpose was also to protect, at that time, a financially weak industry and create an incentive for further development of the emerging aviation industry. Egypt joined the Warsaw Convention in 1955. 6
  7. 7. WARSAW objectives oncerned the damage awards from a single disaster could ruin an emerging airline, the drafters also perceived a need to protect the economic status of the air carriers and provide a more favorable environment for the industrys growth. In order for international aviation to grow and prosper, airlines needed a stable regime of limited liability. hus, a primary purpose of the Warsaw Convention was to limit the liability of airlines in order to foster the growth of the fledgling commercial airline industry. he drafters found such a limit necessary in order to allow air carriers to raise adequate capital to expand operations, to form a basis for the 7 calculation of insurance rates, to limit exposure of governments that
  8. 8. Conditions of application rticle 1 . This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. . For the purposes of this Convention the expression "international carriage" means any carriage in which, 8
  9. 9. 9
  10. 10. Conditions of application rticle 1 ccording to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties, r within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. carriage without such an agreed stopping place between 10
  11. 11. Exceptions of application Article 34 his Convention does not apply to international carriage by air performed by way of experimental trial by air navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it apply to carriage performed in extraordinary circumstances outside the normal scope of an air carriers business. rticle 2 . This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within11 the conditions laid down in Article 1
  12. 12. 1. Air Carriage of persons, goods or baggage • Apply only to air carriage and not to other means of transportation • No application in the case of an combined agreement (sea, land) • The convention does not give a specific definition to the aircraft. We should refer to national Law • According to Egyptian law the following are considered as aircraft ( ex: helicopters, gliders, and balloons). Hovercraft is excluded 12
  13. 13. •1. Air Carriage of persons, goods or baggage • The convention applies to each passenger who is on board on the aircraft by virtue of a carriage contract • The convention does not apply to clandestine travelers • The convention does not apply to the carrier crew members as they travel on board by virtue of labour contracts, fulfilling their obligations and duties • The carriage of passengers includes the carriage of their baggage. • NOT dealing with the liability of carriers to: • –handling agents, caterers, maintenance companies • –lenders and lessors - financing arrangements • –airport authorities e.g. clean-up expenses • –governmental bodies – immigration, customs • –labour or employment law 13
  14. 14. 1. Air Carriage of persons, goods or baggage • The carriage of goods must be according to a contract of carriage, otherwise the convention shall not be applied • The air mail services are not governed by the rules of Warsaw convention (art.2 para.2) • The convention does not apply to international carriage performed by way of experimental trial ( art . 34) • The convention does not apply to carriage performed in extraordinary circumstances, outside the scope of business ( art. 34) 14
  15. 15. Definition of aircraft he Chicago convention gives, as well as the Paris convention of 1919, a broad definition of the aircraft as : “ any machine that can derive support in the atmosphere from the reactions of the air other than against the air’s surface” . 15
  16. 16. Nationality of aircraft 16
  17. 17. Nationality of aircraft The principle :  Aircraft holds the nationality of the state of registration  Aircraft can not be registered in one more state  Privileges such as the monopoly of internal air transport could be granted in the state in which the aircraft is registered 5. Owned by an Individual = Egyptian 6. Owned in co-property = All Egyptians 7. Owned by a company = registered in Egypt +  Partnership= all partnership are Egyptians  Partnership by share = joint liable partners are Egyptians  Joint stock = majority of board members + chairman are Egyptians 17
  18. 18. 2. The carriage must be international According to article 1.2 of the conventions, the carriage is deemed international when ; 2. The two points of departure and destination are in two different states 3. When the two points of departure and destination are situated in a single state but there is an agreed stopping place in a different country. 4. The Warsaw Convention only applies to the air carrier and does not apply to the airplane manufacturer or component part manufacturer which may bear responsibility for the loss. The Warsaw Convention applies only to carrier engaged in "international transportation". 18
  19. 19. 3. The air carriage is done for a reward 1. All kinds of reward are accepted : (money or any other form) 2. The convention shall apply regardless the intention to realize profit ( ex; the reward covers only the cost and expenses) 3. Free carriage is not included within the scope of Warsaw convention 4. However, if a free carriage is performed by an air company , the convention shall apply. ( presumption of a reward) 5. The reward should be in all kind of flights ; scheduled, taxi- flight, roundtrip, combined trip 19
  20. 20. 20
  21. 21. Evolution ven though passenger air travel over the last seventy years statistically remains safer than the automobile trip to the airport, aviation disasters continue to make headlines of international journals, invoking the adaptation of international rules governing the liability issues against air carriers. In fact, most of national laws govern the carrier liability for a passengers injury or death or loss of goods. owever, in international carriage if the flight is between two States or within one State with a stop in a foreign country, then the air carrier liability is controlled exclusively by international Conventions. hese Conventions are known as the Warsaw System and the Montreal Convention. They represent the liability law in international air transport, regulating the relationship between an air carrier and its 21 customer, passenger, consignor or cargo shipper.
  22. 22. Evolution rom its inception in the late 1920s, the overriding purpose of private international aviation law has been to create uniformity of law across regions, i.e. all disputes would be resolved uniformly no matter where they arose. unified liability regime was indeed created by the world community in the Warsaw Convention. In the succeeding decades, efforts to update this legal regime have led to division rather than unification, with different nations adhering to differing versions of the Warsaw Convention and its various reformulations. oday, the question of which law to apply, an issue of great importance to the resolution of aviation loss and damage disputes is anything but uniform or simple 22
  23. 23. number of attempts have been made to amend the WarsawConvention through amending Protocols. These efforts havebeen less than successful, as only some States have ratified allamending Protocols, other States have ratified only a select few,while still others have ratified none.oday the Warsaw System comprises The Warsaw Convention of19292, together with the following legal instruments that amendand update the Warsaw Convention:he Hague Protocol (1955),he Guadalajara Convention (1961), 23he Guatemala City Protocol (1971),
  24. 24. LIABLITY CONVENTION RATIFICATIONS N Members – 192 States he Chicago Convention – 190 States he Warsaw Convention – 152 States he Hague Protocol – 137 States he Guadalajara Convention – 86 States ontreal Protocol No. 4 – 57 States 24
  25. 25. THE WARSAW CONVENTION OF 1929 he Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. Originally signed in 1929 by 31 states it entered into force on February 13, 1933. he Warsaw Convention differs from most treaties in that it established a private law regime that affects persons rather than nations. Since its inception, 127 additional nations have ratified the original convention, making it the most widely adopted private law treaty in history. 25
  26. 26. THE WARSAW CONVENTION OF 1929 igned on 12 October 1929 at Warsaw, Poland, the Warsaw Convention, formally entitled Convention for the Unification of Certain Rules Relating to International Carriage by Air, adopted during the early days of aviation, dominated the field of aviation passenger liability for almost half a century. Prior to the Warsaw Convention, there were no uniform rules of law governing the contract of carriage of air, the rights and obligations of each Party, and the carriers liability. t has evolved into one of the most important instruments of private international law. 26
  27. 27. THE WARSAW CONVENTION OF 1929he Warsaw Convention is an international convention whichregulates liability for international carriage of persons, luggageor goods performed by aircraft for reward. Originally signed in1929 by 31 states it entered into force on February 13, 1933.he Warsaw Convention differs from most treaties in that itestablished a private law regime that affects persons ratherthan nations. Since its inception, 127 additional nations haveratified the original convention, making it the most widelyadopted private law treaty in history. 27
  28. 28. Major areas in which Warsaw has achieved uniformity 28
  29. 29. Major areas in which Warsaw has achieved uniformityajor areas in which Warsaw has achieved uniformity: (1) thedefinition of international carriage; (2) the documents ofcarriage; (3) the regime of liability; and (4) jurisdiction.he Warsaw Convention sought to provide a uniformprocedure, documentation, and regime of substantive lawapplicable to claims arising out of international transportationirrespective of the domicile of the passenger or carrier, theplace of injury, or the venue of trial.he major objective, sought to establish certainty in air litigationby limiting the potential liability of a carrier in accidents thatinvolve personal injury or death to passengers. In exchange for29this limit of liability, the Warsaw Convention reversed the
  30. 30. Documents of carriage niformity was reached in the format and legal significance of the documents of carriage (Art. 3-16 of the Convention). These provisions are still essentially followed by the airlines today.9 Under the Warsaw Convention the carrier has to deliver two tickets, one for the carriage of the passenger and one for the carriage of the luggage. The Convention contains detailed rules as for the contents of the ticket. s for the legal significance of the ticket, Art. 3(2) states that even if no ticket is issued or if the ticket contains an inaccuracy the contract is still valid, and it is still subject to the rules of the Warsaw Convention. owever, the compliance with the formalities of the ticket has been sanctioned by the loss of limitation of liability by stretching the meaning of the Convention to absurdity. urthermore, Art. 3(2) has proven to be an obstacle to the growing use of electronic data processing. It seems to leave no room for electronic tickets since it states that if the ticket has not been delivered, the carrier cannot avail himself of the provisions which exclude or limit his 30 liability
  31. 31. Regime of liability niformity of law was reached in the regime of liability which represents the core subject of the Warsaw Convention. The Convention only governs liability in contract,, where the liability is a strict liability, and contractual liability. he Convention governs liability for death, wounding and other bodily injury (Art. 17), destruction, loss of or damage to registered luggage or goods (Art. 18) and liability for damage to passengers, luggage and goods caused by delay (Art. 19). The legal basis of the liability of the carrier is fault/negligence but with a reversed burden of proof (Art. 20(1)). 31
  32. 32. Reversed burden of proof he Warsaw Convention conforms with his “criteria of danger”. The arrangement of the reversed burden of proof lifts a heavy burden from the claimant as it might, otherwise, prove difficult to provide the necessary evidence in a field of such technical complexity as aviation. he reversed burden of proof reflects a quid pro quo, in the sense that the burden of proof was placed on the carrier to counterbalance the monetary limit of liability in Art. 22. The carrier is liable according to the limit fixed by the convention. For passengers the limit set out in the Convention is 125,000 francs.. 32
  33. 33. Limited compensation cellings assengers enjoyed an absolute right to recover up to 125,000 francs Poincare 8 for the death or bodily injury of a passenger unless the airline could demonstrate that it had taken all necessary measures to avoid the injury. However, a plaintiff could seek compensatory damages beyond the limit upon presenting proof of the carriers "willful misconduct." t also places a liability of 250 francs Poincare per kilogram for loss or damage to registered baggage and of cargo, and 5,000 francs Poincare per passenger for loss or damage to unregistered baggage which the passenger takes charge of himself. 33
  34. 34. Jurisdictionhe Warsaw Convention creates a limitation period of 2 yearswithin which a claim must be brought; and limits a carrier’sliability to at most. It protects passengers by introducing a twotier liability system and by facilitating the swift recovery ofproven damages without the need for lengthy litigationimportantly.inally, the possible conflicts of both laws and jurisdictions havebeen reduced by Art. 28 which provides for four different forumin the territory of one of the High Contracting Parties where theclaimant can sue.he Warsaw Convention provides that a plaintiff can file alawsuit, at his discretion, in one of the following venues: (a) thecareers principal place of business; (b) the domicile of thecarrier; (c) the careers place of business through which the 34
  35. 35. Language he Convention was drafted under influence of civil law and according to Art. 36. French is the sole official language of the convention. t was thought that by looking to one language for guidance in interpretation, the policy of uniformity would be achieved. This has instead proven to be an obstacle in that the court has to interpret the French text each time it has a problem in order to see if it is correctly translated. 35
  36. 36. From Evolution to Evaluation n 1929 when the Warsaw Convention was adopted, it was viewed as being a success, a major contribution to the unification of private international air law. Even today it deserves the uttermost respect as it has been the cornerstone of private international air law for almost a century, despite the rapid changes in the aviation industry and in the costs of living. owever time has been ripe for many years to replace the entire system with a convention that is up to date, benefiting from the merits of the old system and replacing the learned flaws of that system. The purpose of the Warsaw Convention was to create uniformity of law and to protect a weak and emerging aviation industry. owever, the Warsaw System no longer fulfills the goal of uniformity, and the aviation industry is no longer a weak and emerging industry 36
  37. 37. From Evolution to Evaluation he airlines themselves have agreed to a regime of no limit of liability and with a strict liability up to 100,000 SDR, so there seems to be no reason to preserve any limit of liability in the Convention. As for uniformity of law, the many attempts to update the Convention, both by protocols, private agreements and unilateral actions by states, have all lead to a dis-unification of law, obfuscating which rules actually apply to a given case. hen it comes to the rules governing the documents of carriage, the convention is outdated, making it impossible to use an electronic record or ticketless travel since the ticket has to be delivered to the passenger (art. 3). 37
  38. 38. From Evolution to Evaluation he convention is authentic only in the French language, which was the universal diplomatic language at the time the Convention was adopted. t is not very expedient that the courts have to interpret the French text to see if it is correctly translated each time they has a problem to solve. oreover, some of the terms that are used in the Warsaw Convention have caused enormous difficulties of interpretation and application (such as “accident” and “bodily injury” in art. 17 and “willful misconduct” in art. 25). 38
  39. 39. 39
  40. 40. The Hague Protocol of 1955, amending the Warsaw Convention of 1929he worlds economy enjoyed a corresponding growth, increasingthe standard of living and the size of damage awards for tortactions, including that involving domestic aviation, The Warsawdamage limitations, however, remained constant, creatingincreased dissatisfaction.oreover, calculating the dollar value of a human life has neverbeen an easy task. Indeed, controversy ensued almostimmediately after the Warsaw Convention placed the $8 300US,value on the life of a passenger.tates met in The Hague to update the Warsaw Conventionsprovisions. Protocol to Amend the Warsaw Convention was doneat The Hague on 28 September 1955. It came in into force on 1stAugust 1963. The Hague Protocol doubled the liability ceiling for 40passenger injury or death to about $16, 600 USD / 250,000 francs
  41. 41. The Hague Protocol of 1955, amending the Warsaw Convention of 1929 hough the Warsaw Conventions liability limits for cargo were retained at 250 francs per kilogram, the Protocol removed most of the exceptions to limited liability for shippers of air freight, and in particular, the "all necessary measures" and "error in piloting" defenses. It simplified the provision on documents of carriage, and explained the concept of "willful misconduct"." lthough the increase in the limit of liability showed a move to update the Warsaw Convention, the United States at first refused to ratify the treaty as the limits were still deemed too low. 41
  42. 42. The Guadalajara Convention of 1961 onvention, Supplementary to the Warsaw Convention, was done at Guadalajara on 18th September 1961. National delegates addressing loopholes in the Warsaw Convention adopted the Guadalajara Convention. It came in into force on 1st May 1964. t distinguishes between the actual and contracting carrier, and provides that both are liable to the passenger, as if they were the contracting carrier for the purposes of the Warsaw Convention. The passenger is entitled to claim against either or both the actual and contracting carrier for bodily injury, loss or damage to baggage and cargo or for delay, but the total liability remained subject to the limits. 42
  43. 43. Guatemala City Protocol of 1971his Protocol introduced the principle of strict liability by deleting the"all necessary measures" of the Warsaw Convention and forced thecarrier liable regardless of fault in the case of death or personal injuryto passengers.oreover, the Guatemala City Protocol introduced for the first time anadditional forum in which claims could be adjudicated, namely, by thecourt where the passage has his or her domicile of permanentresidence. The Guatemala City Protocol would raise the liability limit to1,500,000 Poincare francs per passenger, even where the carrierengaged in willful misconduct.hat is, carriers were unable to deny responsibility to compensatepassengers where they were without fault. However, as this type ofimmunity might be considered contrary to public policy in many 43States, the Guatemala City Protocol failed to get the required number
  44. 44. Guatemala City Protocol of 1971 t also introduced the concept of absolute liability regardless of fault in the case of death or "personal" injury, arguably including mental or emotional injury, so long as the "event" which caused the death or injury took place on board the aircraft or during embarking or disembarking. n interesting feature of the Guatemala City Protocol is that although it provides for a limit of about 1,500,000 Poincare francs per passenger, there is also proviso for a domestic addition if a state that is party to the protocol desires to have a higher limit. The Protocol prescribed for an unbreakable liability limit of 1,500,000 francs, imposed absolute or ‘risk’ 44 liability on carriers.
  45. 45. The Montreal Protocols (1975)rotocols No’s 1, 2 and 3, done in Montreal on 25 September 1975. TheMontreal Protocols emerged in 1975 in the wake of the Guatemala CityProtocol. The International Conference on Air Law, gathered under theauspices of ICAO, adopted new amendments to the WarsawConvention, as amended by the Hague Protocol. Under the newprovisions, the carrier is liable for cargo damage, irrespective of fault.nother major modification concerns the method of calculating theliability limits by turning from a exclusive gold monetary basis to a dualsystem, allowing countries that are members of the IMF to basepassenger, baggage, and cargo liability on Special Drawing Rights,whereas countries not members of the IMF would declare liabilitylimits in monetary units based on gold. This was done in order toeradicate the problems connected with the hardship of valuing theoutdated francs Poincare. 45
  46. 46. The Montreal Protocols (1975) he Montreal Protocols of 1975 would raise the liability limits to 100,000 SDRs for death or injury to a passenger. The Montreal Protocols No’s 1 and 2 did not come into force until 15 February 1996, with the majority of supporting States being European. The Montreal Protocol No. 3 is unlikely to come into force as the US refused to ratify the Guatemala City Protocol. ontreal Protocol No 4, done at Montreal on 25 September 1975 Montreal Protocol No. 4 amended the cargo provisions of the Warsaw/Hague regime without touching the passenger provisions. It raised cargo liability limits to some degree. Liability is absolute and unbreakable, unless the consignor makes a ‘special declaration’ informing the carrier of the particular value of the cargo. 46
  47. 47. The Montreal Protocols (1975) he Protocol copies the rules relating to carriers’ liability set out in the Guatemala City Protocol in respect of loss of or damage to cargo, removed the outmoded cargo documentation provision of the Warsaw Convention, thereby facilitating the use of electronic records for international air cargo commerce. 47
  48. 48. Outcomehe Warsaw Convention was a visionary and progressiveinstrument in 1929 but in less than three decades becameoutdated, particularly with respect to the unrealistically lowlimits of liability and excessive formalism of the documentationof carriage.nly the 1955 Protocol of The Hague and the 1961 SupplementaryConvention of Guadalajara effectively introduced someenhancements while the 1971 Guatemala City Protocol and the1975 Montreal protocols remained in non-existent for a quarterof the century. 48
  49. 49. Outcomeespite tough efforts over many years to update the WarsawSystem, compensation limits have remained low for victims ofair accidents, and the provisions for regulating the movementof passengers, baggage and cargo are now outdated. Some ofthe protocols, which update the Warsaw Convention, have notbeen widely adopted. A complex, unwieldy and out of datesystem for international carriers’ liability has resulted.herefore, due to the recognition of the inadequacies of theWarsaw and the Warsaw-Hague Convention and ICAOsrepeated failed attempts to rectify the situation, many States,groups of States, and carriers took unilateral actions anddirected their airlines to raise their limits of liability. As such,due to differences in these unilateral actions, the internationalaviation world finds itself in a confused state due to too manydifferent systems. The unification of law no longer exists. 49
  50. 50. 50
  51. 51. 51
  52. 52. 52
  53. 53. PRIVATE CARRIER AGREEMENTS AND UNILATERAL STATE ACTIONSlthough Article 22(1) of the Warsaw Convention allows thepassenger and the carrier, by special contract, to agree to ahigher limit of liability, Article 32 states that any specialagreements which "infringe the rules laid down by theConvention" are "null and void." Therefore, these unilateralactions are merely attachments to the Warsaw Conventionsprovisions. Amending the Convention can only be accomplishedin conformity with the Vienna Convention on the Law oftreaties."ccordingly, as none of the following actions replace theConvention, they merely serve as intermediary agreements,which do not constitute a strong legal regime that courts canapply. Confronted with consumer, media, and public opinion, itbecame difficult to justify the low limits imposed on international 53
  54. 54. The Rome Convention of 1952 he Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface includes the principle of absolute liability of the aircraft operator for damage caused to third parties on the surface but places a limitation on the amount of compensations, expressed in Poincares gold francs and calculated in relation to the aircraft concerned. owever, a diplomatic conference gathered in 1978 under ICAO auspices adopted a protocol for the amendment of the Rome Convention. The fundamental characteristic of the protocol is a considerable increase in the limits of liability and the expression of the limits in the Special Drawing Rights of the IMF. 54
  55. 55. The Montreal Agreement (1966)t is important to note that the Montreal Agreement is not atreaty, but an agreement between international air carriers whoimposes a "quasi-legal” and principally experimental system ofliability that is contractual in nature.Thus Montreal Agreement can be characterized as a privateagreement, signed by each airline, relinquishing the WarsawConventions liability restrictions on personal injury up to$75,000. It retains the requirement that the claimant proveswillful misconduct to recover more than $75,000, and waives thedefenses available under Article 20(1). Though not anintergovernmental agreement, convention or treaty, the UnitedStates made it legally binding under its regulatory powers over 55certification of all domestic and foreign carriers serving the
  56. 56. The Montreal Agreement (1966)he Agreement applies only to death or personal injury, and not toloss or damage of baggage or cargo. The waiver of the Article20(1) defenses, which amounts to absolute liability withoutregard to fault.or personal injury, the plaintiff need only prove damages up tothe $75,000 limit. Although it intended to be an "interim solution,while waiting for a treaty amendment” it remained the dominantliability regime for about thirty years after its formation. 56
  57. 57. The Japanese Initiative and the IATA Inter carrier Agreements(1995-1996) n 1992, the Japanese air carriers asked their government to remove the liability ceiling on negligence litigation in international aviation. The "Japanese initiative" received much attention in aviation litigation groups. he initiative for an effective action was not taken by states but by airlines themselves the Japanese initiative was a groundbreaker for acknowledgement that airlines do not need the shield of unrealistically limited liability. 57
  58. 58. IATA Intercarrier Agreement (1996) ixty-seven airlines attended IATAs first session, held in Washington, D.C. The airlines agreed that the Warsaw Convention must be preserved, but accepted that "the existing passenger liability limits for international carriage by air are grossly insufficient in many jurisdictions and should be revised as a matter of urgency". t was described as "the most dramatic development in the 66 year history of the Warsaw Convention," the agreements soon became a great success and have been signed by a large number of airlines. 58
  59. 59. 59
  60. 60. 60
  61. 61. THE MONTREAL CONVENTION (1999) he 1999 Montreal Convention created and signed by representatives of 52 countries at an international conference convened by the International Civil Aviation Organization in Montreal on May 28, 1999, will came into effect on November 4, 2003. he Montreal Convention predominates over any other rules, which have applied to International Carriage by Air, which have traditionally been the Warsaw Convention of 1929 and the amendments there to including the Hague Protocol, Montreal Protocols Nos. 1, 2, 3 and 4, the Guadalajara Convention and the IATA Intercarrier Agreements. 61
  62. 62. THE MONTREAL CONVENTION (1999) he purpose of the Montreal Convention is to update and modernize the field of private international air law by taking the best elements from the Warsaw system and from the collective special contracts, and merging them into one single document to achieve uniformity of law and transparency once again. This has been needed for many years. he Preamble to the Montreal Convention makes it clear that the Convention is no longer a convention to protect the airlines. It recognizes the importance of protecting the interest of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution. o substantive changes has been made regarding the applicability of the Convention. Only does the Convention incorporate the Guadalajara Convention in chapter V. 62
  63. 63. Problem of uniformity he Convention enters into force upon ratification by 30 states (Art. 53(6)), and it prevails over the whole Warsaw System between States Parties to the Montreal Convention. owever, if some States that have ratified the Warsaw Convention do not ratify the new Montreal Convention, a problem of uniformity will persist. n that regard, the US has apparently reported that it will terminate any Warsaw Treaty relationship with those States that have not ratified the Montreal Convention. his measure would facilitate convincing of States to ratify the 63
  64. 64. THE MONTREAL CONVENTION (1999) he Montreal Convention, which applies to all “international transportation” of passengers, baggage and cargo, replaces the various air carrier liability regimes in effect, around the world today with a new uniform set of rules. While a major portion of the Montreal Convention follows the language of the Warsaw Convention, the Montreal Convention makes important changes to the scope and extent of the carrier’s liability, broadens the jurisdictions where the carrier can be sued. emoval of Limits of Liability in Death and Bodily Injury Cases The most important article of the Montreal Agreement is Article 21.1, which removes the limitations of liability incorporated in Article 22 of the Warsaw Convention with respect to carrier liability for death or bodily injury of passengers in international air transportation. 64
  65. 65. THE MONTREAL CONVENTION (1999) rticle 21.1 of the Montreal Convention provides that the carrier is liable without proof of fault, in the event of death or bodily injury of a passenger caused by an accident on board the aircraft or during any of the operations of embarking or disembarking, for 100,000 Special Drawing Rights (SDRs) With respect to damages not exceeding 100,000 SDRs, the carrier will not be able to exclude or limit its liability for any cause. here damages are requested in excess of that amount, the carrier is liable for unlimited damages, unless it can prove that the damages were not due to the negligence of the carrier or its agents or that the damage was entirely due to the negligence of another party. 65
  66. 66. THE MONTREAL CONVENTION (1999) o punitive, exemplary or other non-compensatory damages will be recoverable, and the Montreal Convention is the only basis upon which an action for damages sustained in international transportation can be brought. hile the Montreal Convention eliminates the language of Article 20(1) of the Warsaw Convention that the carrier is not liable if it took “all necessary measures” to prevent the loss, the new language in Article 21.2 of the Montreal Convention effectively provides for absolute liability on the part of the carrier, in the event of an aircraft accident. 66
  67. 67. THE MONTREAL CONVENTION (1999) he Montreal Convention does not purport to prohibit the carrier from seeking recourse against any other person who it believes is responsible for the damage. However, this right may be unenforceable under the laws of various countries where an indemnity or contribution action is precluded where the carrier’s liability is based on contractual rather than tort liability. rt. 49 states the mandatory nature of the Convention and has the ame substance as the Warsaw Convention Art. 32. Any action for damages can only be brought subject to the conditions and limits set out in the Convention as was the case in the Warsaw Convention (Art. 29 in the Montreal Convention). However, to the text of the Warsaw Convention (Art. 24) a few words have been added in an attempt to clarify the exclusiveness of the Convention which had been disputed for years in the US courts 67
  68. 68. THE MONTREAL CONVENTION (1999) n the case of airline accidents resulting in death or injury of passengers, the carrier shall, if needed by its national law, make advance payments as required by national law to those persons entitled to claim compensation. he Convention provides that such advance payments do not constitute recognition of liability and may be offsetting against any amount subsequently paid as damages by the carrier or, more likely, its insurer. 68
  69. 69. THE MONTREAL CONVENTION (1999) he Montreal Convention does preserve some of the language of the Warsaw Convention. In order to recover compensation under Article 21 of the Montreal Convention for an accident under Article 17 of the Montreal Convention, the passenger must have sustained a “bodily injury”, a requirement that should preclude recovery, based on numerous decisions interpreting the “bodily injury” language of Article 17 of the Warsaw Convention, for those passengers who have sustained only mental distress or emotional injuries as a result of an accident. 69
  70. 70. THE MONTREAL CONVENTION (1999) he Montreal Convention also maintains the protections granted to the agents or servants of the carrier, inferring they are acting within the scope of their employment, and preserves the two year statute of limitations contained in the Warsaw Convention. he Convention furthermore realizes the effect of inflation and permits the limits of liability described in Articles 21, 22 and 23 to be reviewed every five years following the date of entry into the force of the Convention. ne of the major innovation in the new Convention is Art. 50 which rovides that the States shall require their carriers to maintain adequate insurance, and that any State Party can require evidence of 70
  71. 71. THE MONTREAL CONVENTION (1999) dditionally, the Montreal Convention allows legal proceeding for damages resulting from the death or injury of a passenger to be initiated in the country, where, at the time of the accident, the passenger had his or her principal and permanent residence, provided that certain conditions are met. his additional jurisdiction, otherwise known as the "fifth jurisdiction," supplements the other four available forms previously established under the Warsaw Convention. he 5th jurisdiction is not an innovation. Already at the Guatemala City Conference the US insisted on a 5th jurisdiction. In fact, the Montreal Convention just gives back to the claimant the most logical jurisdiction deprived of claimants by the Warsaw Convention. 71
  72. 72. THE MONTREAL CONVENTION (1999) he Montreal Convention also amends, the Warsaw Convention provisions concerning claims for delay, loss of baggage and cargo claims. With respect to delay of passengers or baggage, the airline remains liable. However, the liability limit of $8,300 under the Warsaw Convention for delay of passengers has been lessened to 4,150 SDRs. he “all necessary measures” defense remains feasible for delay claims, whether for delay in the transportation of passengers, their baggage, or delay of cargo. 72
  73. 73. THE MONTREAL CONVENTION (1999) ith respect to baggage, the airline’s liability for lost, damaged or destroyed baggage, whether the baggage be checked or unchecked, is limited to the sum of 1,000 SDRs per passenger, unless the passenger has made a special declaration at the time the baggage was handed over to the carrier and paid a additional sum. his limit of liability is a modification from the previous baggage liability scheme imposed by the Warsaw Convention, where the liability of the carrier was hypothesized on the weight of the checked baggage. 73
  74. 74. THE MONTREAL CONVENTION (1999)rticle 31 retains notice of claim requirements, which werepresent in the Warsaw Convention. Claims for damage tobaggage must be made within seven days from the receipt ofthe baggage and claims for delay must be made within 21 daysafter the baggage has been placed at the disposal of thebaggage.he Montreal Convention also makes significant changes, whichhad been largely implemented by Montreal Protocol Nos. 3and 4, with respect to cargo. The carrier’s liability for lost ordamaged of cargo is limited to 17 SDRs per kilo and theselimits, as they are under Montreal Protocol No. 4, areunbreakable. Article 22 of the Montreal Convention alsoprovides for proration with respect to loss, damage,74
  75. 75. THE MONTREAL CONVENTION (1999)hile the willful misconduct exception for limited liability isdropped for cargo, and there is unlimited liability for damagessustained by passengers as a consequence of accident or deathin international transportation, the only trace of the old WarsawConvention “willful misconduct” requirement remains in casesinvolving delay and baggage.he limitation on liability for damages caused by delay and forloss, destruction, damage or delay of baggage is not applicable ifit is proven that the damage was sustained resulting from an actor omission of the carrier or its agents “done with intent tocause damage or recklessly and with knowledge that the 75damage would probably result.
  76. 76. THE MONTREAL CONVENTION (1999) he Warsaw Convention was drafted in French and was authentic only in this language. This helped to attain a uniform interpretation of the law because when a legal term was not clear the courts worldwide had to consider the French version of the Warsaw Convention. owever, the last paragraph of the Montreal Convention states that it was done “in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic”. 76
  77. 77. THE MONTREAL CONVENTION (1999) espite the fact that this is a politically correct option that may “satisfy national and language pride”, as English was the working text during the drafting of the Convention and is also the most important language in international aviation, it would have been much better to choose the English text as the only official version in order to facilitate the principal goal of the Convention: uniformity of law across jurisdictions. he future will probably show that having six “equally authentic” texts is completely inefficient. 77
  78. 78. THE MONTREAL CONVENTION (1999) ontreal Convention is considered to be a fair and reasonable compromise that offers the best chance yet to achieve a global solution to the problem of updating the Warsaw System. he Montreal Convention introduces a number of improvements, which modernize and strengthen the Warsaw system, including measures that had been proposed previously but not efficiently adopted. ost importantly it enhances the international rule for air carrier’s liability by providing a structure of unlimited and more equitable passenger compensation governing injury or death. 78
  79. 79. THE MONTREAL CONVENTION (1999)major reform is that it consolidates these features into onecomplete package that States must either accept or reject.States will no longer be able to ratify some Protocols and notothers.s more and more States ratify the new Montreal Convention,the Warsaw System will become needless and there will begrowing pressure on non-parties to sign on to the newConvention. 79
  80. 80. he Warsaw Convention has undergone significant changes andreform efforts aimed at modernizing the liability scheme. Thetraditionally low liability limits have been raised, converted intoan international market standard, and tied to inflation.he Montreal Convention carries the legacy of the WarsawConvention by retaining the structure and the conceptsestablished and well practiced in international law over the lastseven decades. Clearly, the Montreal Convention representsseventy years of trial and error, with the main thrust forrecovery, modernization, and fairness stemming from theactions of the airline industry itself. 80
  82. 82. COMPEN$ATION HAS ALWAYS BEEN THE PROBLEM arsaw Convention of 1929 Capped liability at $8,300, unless the carrier engaged in willful misconduct or improper documents provided; The Hague Protocol of 1955 Doubled liability to $16,600 The Montreal Agreement of 1966 Raised liability to $75,000 HE MONTREAL CONVENTION OF 1999 Incorporating most of the liability provisions of the IATA Intercarrier Agreements, the Convention establishes a two-tier liability system, with strict liability for death or bodily injury up to 100,000 SDRs, and presumptive liability in an unlimited amount; 82
  83. 83. THE MONTREAL CONVENTION OF 1999 If the claimant’s damages exceed 100,000 SDRs, the carrier has two defenses: (1) freedom from fault; or (2) the damage was solely caused by a third person; “Punitive, exemplary or other non-compensatory damages” are not recoverable; No provision was made for recovery of emotional damages; Carriers must maintain adequate insurance to cover their liability; The Convention’s liability limits shall be reviewed every five years and adjusted for inflation; The claimant may recover court costs and attorney’s fees if the amount of damages awarded exceeds any written settlement offer made within six months of the accident but before suit is commenced; 83
  84. 84. Tier 1 : Strict liability 84
  85. 85. Tier 2 : unlimited liability 85
  86. 86. THE MONTREAL CONVENTION OF 1999 he Convention incorporates many of the provisions of MP4 relating to cargo; nless special value is declared, loss and damage and delay of baggage results in maximum liability of 1,000 SDRs; destruction, loss, damage, or delay of cargo results in liability capped at 17 SDRs per kilogram; cargo liability ceilings cannot be broken; here is no carrier penalty for noncompliance with the new documentation requirements; and rbitration clauses may be included in cargo air waybills. 86
  87. 87. Plaintiff Advantages of M99 o proof required of carrier negligence … need only prove the injury resulted from an “accident” trict liability up to 100,000 SDRs for bodily injury or death early certain recovery beyond (to the extent of provable damages) bility to file suit in home country ut . . . No recovery if only damages were emotional, and no recovery of punitive damages. 87
  88. 88. Carrier Defenses he transportation was not “international carriage” he event was not an “accident” he event occurred before embarkation or after disembarkation he damage did not constitute “bodily injury” he plaintiff was contributory negligent (liability discounted by π’s fault) bove 100,000 SDRs, the carrier was not negligent, or the 88 damage was “solely” caused by a third party.
  89. 89. The Warsaw Regime, or M99 Apply if:he place of departure and place of destination are:oth in "Warsaw System" or M99 Statesrn the same "Warsaw System" or M99 State with an agreedstopping place in another Statend both States have ratified a common liability Convention or 89
  90. 90. Which Legal Regime Applies? he original Warsaw Convention of 1929, unamended; he Warsaw Convention as amended by the Hague Protocol of 1955; he Warsaw Convention as amended by Montreal Protocol No. 4 (MP4) of 1975; he Montreal Convention of 1999, or omestic law, if it is deemed that the transportation falls outside the conventional international law regime, or if the two relevant States have failed to ratify the same liability convention. 90
  91. 91. Chubb & Son v. Asiana Airlines he US had ratified the Warsaw Convention but not the Hague Protocol of 1955. outh Korea had ratified the Hague Protocol, but not the Warsaw Convention. ecause the US and South Korea were “not in treaty relations with regard to the international carriage of goods by air”, federal subject matter jurisdiction was deemed not to exist. The court concluded that “no precedent in international law allows the creation of a separate treaty based on separate adherence by two States to different versions of a treaty, and it is not for the judiciary to alter, amend, or create an agreement between 91
  92. 92. THE IMPACT OF CHUBB hubb holds that the nation of the origin and destination of the passenger’s itinerary must have ratified the identical treaty. Korea and the U.S. were held to have ratified different treaties – the Hague Protocol and the Warsaw Convention, respectively. Hence, no liability convention was common to both States. he U.S. ratified Montreal Protocol No. 4, which entered into force for the United States on March 4, 1999. Though it principally addresses cargo issues, it brings the US under the Hague Protocol of 1955. Just to be sure, the U.S. separately ratified the Hague Protocol, nearly half a century after it was drafted. hubb also became a major catalyst for U.S. Senate ratification of the Montreal Convention of 1999, which entered into force on November 92 4, 2003.
  93. 93. Course plan 93
  94. 94. CHAPTER 2The framework of air carrier liability 94
  96. 96. ACCIDENT, INJURY, CAUSATION & LOCATION he Montreal Convention of 1999 made no significant change to Article 17 of the Warsaw Convention: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 96
  97. 97. ACCIDENT, INJURY, CAUSATION & LOCATION he Montreal Convention of 1999 made no significant change to Article 17 of the Warsaw Convention: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 97
  98. 98. ACCIDENT, INJURY, CAUSATION & LOCATION he dictionary defines “accident” as “a happening that is not expected, foreseen, or intended”, or “an unpleasant and unintended happening, sometimes resulting from negligence, that results in injury, loss, damage, etc.”. ssues arising under Article 17: What kind of "accident" must have occurred? hat types of injuries are considered by the term "damage sustained in the event of death or bodily injury"? 98
  99. 99. 3 STEPS TEST 99
  100. 100. EVENTS THAT CAN BE 100
  101. 101. 101
  102. 102. Inherent Risks of Air Transportation ost cases, though, have held that if the event is a usual and expected operation of the aircraft, then no accident has occurred. Similarly, courts have relied on the Saks definition, that where the injury results from the passenger’s own internal reaction to the usual, normal, and expected operations of the aircraft, it is not caused by an accident. or instance, no accident has occurred if a passenger trips over another passengers shoes and gets hurt, because taking of your shoes during the flight is among the usual and expected operations of the aircraft. Similarly, an allergic reaction to insecticide that is sprayed on the aircraft is not an accident, because it is part of the usual and expected operations of the aircraft and because the allergic reaction is something internal to the passenger. raig v. Compagnie Nationale Air France (1994), (9th Circ. 1994). 102
  103. 103. Inherent Risks of Air Transportation t is clear that the carrier is liable for the inherent risks of air travel, as the Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel. he carrier is thought to be in a better position than the passenger to control the risks of air travel, and if it fails to do so, then an accident has occurred. hat the carrier is liable for the inherent risks of air travel also fits into the Saks definition of an accident in that if the event is not a “usual an expected operation of the aircraft” it is an accident. 103
  104. 104. Inherent Risks of Air Transportation tandard examples of risks in air travel are an unusual drop of air pressure in the cabin or an unusually high air turbulence. These events have to be unusual, though. In the Saks case a passenger claimed compensation from the airline because she had become permanently deaf on her left ear during the flight. he court held that her injury was not caused by an accident within the meaning of Art. 17, the evidence indicating that the pressurization system had operated in a normal manner. 104
  105. 105. Inherent Risks of Air Transportation oday terrorism, bomb threats and hijackings are considered to be among the inherent risks of air travel. In Salerno v. PanAm84 a passenger achieved compensation for an abortion caused by a bomb threat. he mere threat was considered to be an accident under Art. 17. In Husserl v. Swiss Air Transport Co, the court stated, “Since 1929, the risks of aviation have changed dramatically in ways unforeseeable by the Warsaw framers. Air travel hazards, once limited to aerial disasters, have unhappily come to include the sort of terrorism exemplified by the Athens attack.” he court held that hijacking was an accident covered by Art. 17. This line has been followed in the cases since. 105
  106. 106. In-Flight Illnesses he courts have had difficulties distinguishing the damage from the accident in cases of in-flight illnesses. Some courts have recognized that an illness caused by an event that is internal to the passenger may be caused by an accident if it becomes aggravated by negligent failure to treat the illness. Other courts have rejected this view. rys v. Lufthansa German Airlines (1997). n the Saks89 case the court expressed the following view: “… Article 17 refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury. he text thus implies that, however ‘accident’ is defined, it is the cause 106
  107. 107. In-Flight Illnesses : Does the airline crew have to be doctors at thesame time? he cabin crew have been presented with somewhat of a dilemma. The reasoning by some courts has been that if an illness is aggravated by the crew’s attempt to help the passenger, that aggravation constitutes an accident, while if the crew did nothing to try to help the passenger an accident has not occurred. nder the logic of Fischer v. Northwest Airlines an accident may be said to have occurred if an airline carries and uses a cardioverter incorrectly (s a small battery-powered electrical impulse generator which is implanted in patients who are at risk of sudden cardiac death). owever, if the airline does not carry a cardioverter at all, an accident might not have occurred. This leads to an undesirable result as it does not promote the providing of help to a passenger in need. One court has taken a step further and come to the conclusion that failure 107 to
  108. 108. Passenger-to-Passenger Interactions ost US courts have, in accordance with this statement, found that carriers are not liable for one passenger’s assault on the other passenger, because these interactions are not part of the normal operations of the aircraft and are therefore not covered by the word “accident” under Art. 17. For instance, in . Price v. British Airways the court held that one passenger’s fist fight with another passenger was not an “accident”, and the carrier was therefore not liable for the damages. ot all courts are of the opinion that only inherent risks of air travel are covered by “accident” in Art. 17. In Barratt v. Trinidad & Tobago Airways Corp.96 the court stated that the definition in the Saks case is in no way limited to those injuries resulting from dangers exclusive to aviation, and that neither does Art. 17 108
  109. 109. Passenger-to-Passenger Interactions owever, many cases suggest that passenger-to passenger assaults, which are not themselves accidents, may by the act or omission of the crew become an accident. An example is Tsevas v. Delta Airlines, Inc., where a drunken passenger molested a woman sitting next to him. he court held that this occurrence constituted an accident by virtue of the cabin crew’s failure to reseat the woman after she complained about this behavior, combined with the crew’s continuous serving of alcohol to the man after the complaint. 109
  110. 110. Passenger-to-Passenger Interactions N united states district court in wallace v. korean air in this case a woman awoke to find that the passenger seated adjacent to her had harassed her she complained to a crew member who immediately reassigned her to a new seat. the court held that no accident had occurred. he reasoning was that there was no act or omission by the aircraft or airline personnel representing a departure from the normal, expected operation of a flight, and that, moreover, sexual molestation is not a risk characteristic to air travel. 110
  111. 111. WHAT IS AN ACCIDENT 111
  112. 112. ir France v. Saksacts: a passenger lost her hearing in one ear after a routinedepressurization of an Air France aircraft landing normally at LosAngeles.he definition of an accident under Article 17 should be flexibly appliedafter assessing all the circumstances surrounding the passengersinjuries;he “event or happening” that caused the passengers injury must beabnormal, "unexpected or unusual";The event must be "external to the passenger", and not thepassengers own "internal reaction" to normal flight operations; andWhere the evidence is contradictory, the trier of fact must determinewhether an accident, so defined, has occurred. 112
  113. 113. eep Vein Thrombosis and Air Travel Group Litigation, The LitigationMaster of Rolls of England’s Court of Appeal concluded, “Icannot see, however, how inaction itself can ever properly bedescribed as an accident. It is not an event; it is a non-event.Inaction is the antithesis of an accident.”antas Ltd. v. Povey The appellate division of the Supreme Courtof Victoria, Australia concluded that “a failure to dosomething . . . cannot be characterized as an event orhappening . . . .” The court went on to opinion that a pilot’sfailure to drop the landing gear would not constitute an Article17 accident, but the resulting crash of the aircraft would. 113
  114. 114. lympic Airways v. Husainecovery allowed for the death of an asthma-suffering passengerexposed to second-hand smoke.he refusal of a flight attendant to assist a passenger whorequested assistance constituted “an unexpected or unusualevent or happening” under Saks.oth the passenger’s exposure to the second-hand smoke, andthe refusal of the flight attendant to assist the passenger,contributed to Husain’s death.naction can be an accident irrespective of the conclusions of 114intermediate appellate courts in England and Australia.
  115. 115. The Australian High Court Povey v. Qantas AirwaysMcHugh: “With great respect for the U.S. Supreme Court . . . theSaks definition of “accident” does not exhaustively define thescope of Art. 17. . . . In Saks, it would have made no sense for theCourt to describe the operation of the pressurization as “ahappening that is not . . . intended.” The system operatedindependently of any actor who could have formed an intention todo an act that had consequences that were not intended orexpected.•“With great respect to the Supreme Court in Saks, it went too farin insisting that the harm-causing occurrence must always be“caused by an unexpected or unusual event or happening that isexternal to the passenger.” 115
  116. 116. The Australian High Court Povey v. Qantas Airways An omission may . . . constitute an ‘accident’ when it is part of or associated with an action or statement. . . . But a bare omission to do something cannot constitute an accident.” Kirby: “In ordinary parlance, the absence of a happening, mishap or event may be an ‘occurrence’. However, depending on the context, it will not usually qualify as an ‘accident’.” Callihan: “mere inaction could not constitute an event or an accident.” 116
  117. 117. Hence, the U.S. Supreme Court’s reliance on the Saks’definition of “accident” in Husain constituted imperfectjurisprudential methodology.Instead of asking whether the inaction of a flight attendantwas an “unusual or unexpected event of happening externalto the passenger”, the Court instead should have askedwhether the flight attendant’s inaction was an “accident.”•Lord Scott observed that two requirements identified inSaks – that an event that is no more than the normaloperation of the aircraft in normal conditions is not an“accident”, and that to be an accident, the event that causedthe damage must be external to the passenger – ruled outrecovery for DVT. 117
  118. 118. oth DVT and PTSD cases generally have not fared well in thecourts, but on sharply different grounds. In DVT cases,airlines have prevailed because there was no “accident”. InPTSD cases, airlines have prevailed where there was nophysical injury.ut note the sharp divisions between the analyticalapproaches of the highest courts in the United States, theUnited Kingdom and Australia. The U.S. courts ask whetheran injury occurring on board a flight constitutes an “unusualor unexpected event or happening external to thepassenger.”he U.K. and Australian Courts ask whether the injury wascaused by an “accident.” While the U.S. Supreme Courtconcludes that inaction can constitute an “unexpected event 118
  119. 119. 119
  120. 120. ACCIDENT, INJURY, CAUSATION & LOCATION motional Damages he issue of whether emotional damages are recoverable has long troubled common law courts. The jurisprudence on this issue reflects several major concerns: 1) that emotional harm can be feigned, or imagined; and 2) some harm is the price we pay for living in an industrial society; 3) emotional damages are difficult to measure; and 120
  121. 121. ACCIDENT, INJURY, CAUSATION & LOCATION urning now to Private International Air Law, courts that have examined the travaux preparatiores of the Warsaw Convention of 1929 have concluded that there was no discussion of whether recovery for emotional damages was contemplated by its drafters. hey also have concluded that recovery for emotional damages was not permitted by most civil or common law jurisdictions prior to 1929. 121
  122. 122. Eastern Airlines v. Floyd everal passengers claimed to have suffered mental distress when their aircraft, bound for the Bahamas, lost power in all three engines and began a sharp and terrifying descent. The flight crew informed the passengers that it would be necessary to ditch the plane in the ocean. Almost miraculously, the pilots managed to restart the engines and land the jet safely back at Miami International Airport. he U.S. Supreme Court held that Article 17 does not allow recovery for purely mental injuries. This conclusion was based on the French translation (interpreting "lesion corporelle" to mean "bodily injury"),and on the primary purpose of the Warsaw Convention -- limiting liability in order to foster growth of the infant airline industry. 122
  123. 123. Eastern Airlines v. Floydriting for the majority, Justice Marshall concluded:The narrower reading of lesion corporelle also is consistent withthe primary purpose of the contracting parties to theConvention: limiting the liability of air carriers in order to fosterthe growth of the fledgling commercial aviation industry. . . .Whatever may be the current view among Conventionsignatories, in 1929 the parties were more concerned withprotecting air carriers and fostering a new industry thanproviding full recovery to injured passengers, and we read lesioncorporelle in a way that respects that legislative choice.” 123
  124. 124. Emotional damage The explicit imprecision and ambivalence of the Supreme Court’s dictum in Floyd -- “we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries” -- left the door ajar for all sorts of litigation. •For example, to recover under Article 17, need the emotional injury result from the physical harm, or may the physical harm result from the emotional injury? In other words, may the physical injury simply be the physical manifestation of emotional harm (e.g., what if plaintiff was not physically touched, but suffered hives, diarrhea, or hair loss because of her fright), or must there instead be some direct physical contact which produces a bruise, lesion, or broken bones causing emotional harm? 124
  125. 125. US Federal District Court in Jack v. Trans World Airlinesoes Warsaw cover a passenger who suffers emotional distressaccompanied by bodily injury? Jack explored the issue identifiedseveral alternatives:o recovery allowed for emotional distress;ecovery allowed for all emotional distress, so long as bodilyinjury occurs; andnly emotional distress flowing from the bodily injury isrecoverable. 125hile agreeing that mental injuries flowing from physical injuries
  126. 126. The House of Lords in Morris v. KLMhile agreeing that pain caused by physical injury is recoverable,also Lord Steyn, “would hold that if a relevant accident causesmental injury or illness which in turn causes adverse physicalsymptoms, such as strokes, miscarriages or peptic ulcers, thethreshold requirement of bodily injury is satisfied.”The issue was whether a 16-year old girl could recover for theclinical depression she suffered after being fondled by anotherpassenger aboard a flight from Kuala Lumpur-Amsterdam. LordNicholls wrote, “The expression ‘bodily injury’ or ‘lesioncorporelle’, in article 17 means, simply, injury to the passenger’sbody.” However, he observed that the brain too, is part of thebody, and sometimes subject to injury; the question as to whetherthe brain has suffered an injury is a question of medical evidence. 126
  127. 127. The House of Lords in Morris v. KLM The inference is that when medical science has advanced to the level that it can point to an injury in the brain causing clinical depression, then such damages may be recoverable. •cThough Lord Steyn concluded that Article 17 does not allow one to recovery for emotional damages absent physical injury, he would allow recovery under two circumstances: (1) pain and suffering resulting from physical injury; and (2) in cases where there is physical manifestation of emotional harm: •“if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, the threshold requirement of bodily injury under the Convention is satisfied.” 127
  128. 128. US Court of Appeals in Ehrlich v. American Airlinesn an exhaustive review of the negotiating history of thequestion of potential recovery of emotional damages in theMontreal Convention, the court concluded that there was noconsensus or common understanding among the delegates onthe issue of whether, and under what circumstances, recoveryshould be allowed for mental damages. 128
  129. 129. US Court of Appeals in Ehrlich v. American Airlineshree U.S. Circuit Courts of Appeals in Terrafranca, Lloyd, and Carmeuhave held that physical manifestation of emotional harm is notrecoverable under Article 17, while the U.K. House of Lords in Morrisv. KLM concluded that they were. Though the U.S. Supreme Courthas not yet had occasion to rule on the issue, the stage is set forjurisprudential confrontation yet again between the Titans of Law.he U.S. delegate at the conference erroneously asserted that thestate of Article 17 jurisprudence in U.S. courts at the time allowedrecovery for mental injuries even when such injuries were notcaused by physical injuries, and sought to include legislative historyto the effect that M99 was not intended to disturb thatjurisprudence. The court held that those views were wrong, and thatprevailing American jurisprudence required that, to recover foremotional damages, those emotional damages must have beencaused by physical injury. 129
  130. 130. Conclusion No recovery allowed for emotional distress; Recovery allowed for all emotional distress, so long as bodily injury occurs; Emotional distress allowed as damages for bodily injury, but distress may include distress about the accident; and Only emotional distress flowing from the bodily injury is recoverable. Jack v. Trans World Airlines, embraced the fourth alternative, and has been widely followed. 130
  131. 131. Conclusion ssues of what constitutes an “accident” and under what circumstances emotional damages are recoverable under Article 17 have proceeded under different jurisprudential paths in the U.S., U.K. and Australia. hat the highest courts in all three of these influential jurisdictions have disagreed so fundamentally, is troubling. his Clash of the Titans does not square well with a Convention intended for the Unification of Certain Rules for International Carriage by Air. 131
  132. 132. When the accident should take place? 132
  133. 133. When the accident should take place? 133
  134. 134. When must the Accident Take Place?he time period for the carrier’s liability is limited toaccidents taking place on board the aircraft or in thecourse of embarking or disembarking. It is the injuredperson who has to prove that the accident took placeduring this time period.he exact distinction of the time period is not madeclear in Art. 17, but it is generally accepted that theliability begins when the passenger is put in the care ofan employee of the carrier and ends when thepassenger enters the arrival hall at the point 134 of
  135. 135. On Board the Aircraftf a passenger suffers injuries caused by an accident which tookplace during the flight, the damage is covered by Art. 17. Thesame is true if the accident happens before take-off or afterlanding, while the passenger is on board the aircraft. However,the carrier is also liable if the accident took place on board theaircraft but without any direct connection to the flight.f a passenger suffers injuries caused by an accident which tookplace during the flight, the damage is covered by Art. 17. Thesame is true if the accident happens before take-off or afterlanding, while the passenger is on board the aircraft. However,the carrier is also liable if the accident took place on board theaircraft but without any direct connection to the flight. 135
  136. 136. In Herman v. TWA (1972)n aircraft was hijacked, diverted to the Middle East and forcedto land in the desert near Amman, Jordan. For six days thepassenger and crew members were held captive on or near theaircraft, whereupon they were taken to a hotel and thefollowing day released.he airline argued that it was not liable because the damage wascaused while the aircraft was used as a detention camp afterthe flight had come to an end.he court refused the argument and stated that the eventstogether made one continued accident. 136
  137. 137. In Husserl v. Swiss Air Transport Company1975 he court stated that the drafters of the Convention undoubtedly assumed that “on board the aircraft” meant from the time of embarkation at the place of origin to the disembarkation at the scheduled place of destination. he court further stated that it would be extremely difficult to distinguish between the injuries caused by an accident on board the aircraft and the injuries caused by events not taking place on board the aircraft. 137
  138. 138. In the Course of Embarking or Disembarking This three-parttest was first set down inDay v. TWA 1975 138
  139. 139. Day v. Trans World Airlines hat does this phrase mean: in the course of any of the operations of embarking or disembarking? . What was the activity of the passengers at the time of the accident; . What control or restrictions was placed on their movement by the carrier; . What was the imminence of their actual boarding; and 139 . What was the physical proximity of the passengers to the
  140. 140. Day v. TWA 1975t has been argued that Art. 17 was not meant to cover damagescaused by accidents in the terminal building, and furthermore,that it was meant to cover only the inherent risks of aviation.owever, the Warsaw drafters wanted to create a system ofliability that would cover all hazards of air travel. A rigidlocation-based rule would not adequately serve that purpose.The risks of air travel do commence when the air carrier takescontrol over the passengers, and furthermore, it is at this stagethat the air carrier starts fulfilling his obligations according tothe contract.t therefore seems reasonable to focus on the control of the 140
  141. 141. In Evangelinos v. TWAhe case was about a terrorist attack which took place while airlinepassengers were assembled in an airport transit lounge to undergothe physical and handbag search prior to boarding the flight. Thecourt found that the passengers were in the course of embarking,because the air carrier had begun to perform its obligations as carrier,and, by taking control of the passengers, had assumed responsibilityfor their protection. The place of the accident is thus only one of thefactors to be considered.he court stated that in determining if the accident took place incourse of embarking or disembarking, three factors are primarilyrelevant, “location of the accident, activity in which the injuredperson was engaged, and control by defendant of such injured personat location and during the activity taking place at the time of theaccident.”he court further stated that “control remains at least equally 141 as
  142. 142. In Air-Inter v. Sage (1976)aken from among cases decided by French courts, thecourt came to the conclusion that the passenger wasnot in the course of embarking. passenger slipped and fell in an airport entrance hallbecause of whisky spilt on the ground by a previoustraveler.s the entrance hall is a public place beyond the controlof the carrier, the process of embarkation was notconsidered to have commenced. 142
  143. 143. MacDonald v. Air Canada (1971)reated the word disembarkation. The court declined tointerpret Art. 17 as covering an elderly passenger whofell while standing near the baggage “pickup” areawaiting for her daughter to recover her MacDonald was not acting under the direction ofthe airlines since she was free to move about theterminal, neither was she performing an act requiredfor embarkation or disembarkation. 143
  144. 144. Moses v. Air Afrique (2000)he court referred to the three part test (activity, location andcontrol) set down in Day v. TWA and stated that passengers arenot in the course of disembarking when they are injured in thepublic areas of transport terminals, and similarly that they havefinished disembarking after clearing immigration, on their wayto or already in the baggage claim areas.passenger who was assaulted by Air Afrique personnel in thebaggage claim area did thus not have any cause of action underArt. 17. 144
  146. 146. 146
  147. 147. Strategies for the cargo LiabilityHE PLAINTIFF’S CASE: HE DEFENDANT’S CASE :Strategies for Piercing theLiability Ceiling.The Transportation Was Not An .The Plaintiff Failed to File aInternational Movement Timely Claim or Suit.The Movement Was Not .The Plaintiff WasTransportation By Air Contributory Negligent.There Is No Common Treaty In .The Carrier Took “AllForce Necessary Measures” to Avoid the Loss, or It Was.The Air Waybill Was Deficient Impossible to Do So 147.The Baggage Claim Check Was
  148. 148. THE PLAINTIFF’S CASE:Strategies for Piercing the Liability Ceiling .The Transportation Was Not An International Movement .The Movement Was Not Transportation By Air .There Is No Common Treaty In Force .The Air Waybill Was Deficient .The Baggage Claim Check Was Deficient .The Carrier Engaged in Wilfull Misconduct 148
  149. 149. 1- The Transportation Was Not International Carriage he Warsaw Convention does not apply unless the contract of carriage designates the place of departure and place of destination as situated in the territory of two contracting states (“High Contracting Parties”), r ithin a single contracting state if there is an agreed stopping place within the territory of another state. 149
  150. 150. 2- The Movement Was Not Transportation By Air arsaw Convention, Art. 18(3): The period of transportation by air shall not extend to any transportation by land, by sea, or by river performed outside an airport. If, however, such transportation takes place in the performance of a contract for transportation by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during transportation by air.” ictoria Sales Corp. v. Emery Air Freight (2nd Cir. 1990): All the parties agree that the loss of the . . . shipment at Emery’s warehouse, located near but nonetheless outside the boundaries of Kennedy Airport. It would appear, therefore, that the plain language of Article 18 would exclude the loss from the scope of the Warsaw 150
  151. 151. 2- The Movement Was Not Transportation By Air nder Art. 18, Warsaw does not apply unless the occurrence that caused the damage took place during “carriage by air” - while the cargo was: n charge of the carrier nd either n board an aircraft r t an airport 151
  152. 152. The Montreal Convention of 1999 nder M99, arriage by air“ applies when the cargo is in the charge of the carrier. f cargo is damaged or lost while loaded, delivered or transshipped outside the airport, but subject to a contract for carriage by air, it is presumed to be carraige by air. 99 also applies if the carrier substitutes another mode of transportation, even without consignor‘s consent. oreover, under Article 38, in the case of intermodal transportation (“combined carriage”), a clause can be inserted into the contract of carriage making the Convention applicable 152
  153. 153. 3- There Is No Common Treaty In Force hubb & Son v. Asiana Airlines (2nd Cir. 2000): no precedent in international law allows the creation of a separate treaty based on separate adherence by two States to different versions of a treaty, and it is not for the judiciary to alter, amend, or create an agreement between the United States and other States.” 153
  154. 154. 4- The Air Waybill (“Air Consignment Note”) Was Deficient he Warsaw Convention was heavily influenced by the pre-existing rules of maritime carriage. The Warsaw Convention, Art. 8, includes 17 specific requirements, ten of which are mandatory. Under Art. 9 failure to include any of the ten mandatory requirements results in the carrier losing its liability ceiling: Place and date of execution; Place of departure and destination; Agreed stopping places; Name and address of consignor; Name and address of the first carrier; Name and address of the consignee; 154
  155. 155. The Hague Protocol ague amended Art. 8 to reduce the number of items to be included on an air waybill to three: .Place of departure and destination; .Agreed stopping place in another State where the origin and destination are within a single State; and .The Warsaw Convention governs liability. he Hague Protocol simplified the documentary requirements. he liability ceiling could only be breached under two circumstances: .No air waybill had been made out, or .The waybill failed to give notice that liability could be governed by the Warsaw Convention. 155
  156. 156. Evolving Jurisprudence hough early jurisprudence forgave nonprejudicial omissions, particularly where the consignor was a commercial entity, recent cases have given Warsaw a strict construction. han v. Korean Airlines, Ltd., 490 U.S. 122 (1989): “We must thus be governed by the text -- solemnly adopted by the governments of many separate nations . . . . [W]here the text is clear . . . we have no power to insert an amendment.” ujitsu Ltd. v. Federal Express (2nd Cir. 2001): 156
  157. 157. But, these documentary requirements have been emasculatedby Montreal Protocol No. 4, and by M99. he mandatory nature of documentation requirements has been eliminated. rt. 3(5) for passengers and baggage, and Art. 9 for air cargo, provide: Non-compliance with . . . [the foregoing paragraph] shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless , be subject to the rules of this Convention including those relating to limitation of liability.” urther, under MP4 and M99 consignors may use simplified electronic records to facilitate shipments. 157
  158. 158. ontreal 99, Article 11 provides that the air waybill or cargoreceipt is prima facie evidence of :he contract of carriage,he number of packages,he weight of the shipment,nd the apparent condition of the cargo.ince under Article 22 liability is determined by the weight of theshipment (17 SDRs per kilogram), unless a special declaration ofvalue was made at origin and an additional sum paid, the 158consignor is motivated to specify the weight.
  159. 159. Montreal 99, Article 10 he consignor must indemnify the carrier for damages suffered by it by reason of the irregularity, incorrectness of incompleteness of particulars or statements provided by the consignor. he carrier must indemnify the consignor for damages suffered by it by reason of the irregularity, incorrectness of incompleteness of particulars or statements provided by the carrier. ence, misstatements on the air waybill or customs documents should be avoided. 159
  160. 160. 5- The Baggage Claim Check Was Deficient rticle 4 of Warsaw provided that the liability ceiling could be broken if: The carrier failed to deliver a luggage ticket, or If the ticket fails to include one of the following three particulars: .The number of the passenger ticket; .Number and weight of the packages; or .That carriage is subject to the liability rules of Warsaw. he Hague Protocol ague reduced to two, the ways in which the liability ceiling could be pierced: 160
  161. 161. Chan v. Korean Airlines (U.S. 1989): We must thus be governed by the text -- solemnly adopted by the governments of many separate States . . . where the text is clear . . . we have no power to insert an amendment.” rgo: strict and narrow construction of Warsaw’s requirements. rticle 3(5) of M99: Non-compliance … shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to . . . this Convention including those [rules] relating to limitation of liability.” 161
  162. 162. 6-The Carrier Engaged in Wilful Misconduct efined in the Hague Protocol as an act or omission of the carrier ot its servants or agents acting within the scope of employment with intent to cause damage or with reckless disregard for its consequences. ayer Corp. v. British Airways (4th Cir. 2000): “On a mens rea spectrum from negligence to intent, [the wilful misconduct] standard is very close to the intent end. Negligence will not suffice, nor even recklessness judged objectively.” 162
  163. 163. Willful Misconduct he Warsaw Convention: o limit on liability where the damage is caused by the carrier’s wilful misconduct or such default as is considered the equivalent of wilful misconduct. he Hague Protocol: o limit on liability where the damage resulted from an act or omission of the carrier with intent to cause damage, or done recklessly with knowledge that damage would probably result. 99: 163
  164. 164. THE DEFENDANT’S « air carrier »CASE.The Plaintiff Failed to File a Timely Claim or Suit.The Plaintiff Was Contributorily Negligent.The Carrier Took “All Necessary Measures” to Avoid the Loss,or It Was Impossible to Do So.The Loss or Damage Was Caused by a “Common Law” 164
  165. 165. 1.The Plaintiff Failed to File a Timely Claim or Suit amaged Baggage: 3 days amaged Goods: 7 days elayed Baggage or Goods: 14 days tatute of Limitations: 2 years IME LIMITS FOR FILING NOTICE ON CARGO WARSAW HAGUE, MP4 & M99 AMAGE 7 DAYS 14 DAYS ELAY 14 DAYS 21 DAYS 165